TaxTMI 
TaxTMI 
2022 (4) TMI 286
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....e revenue for A.Y.2012-13 are reproduced as under: "1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the penalty levied by the AO without appreciating the fact that in AY 2011-12, the Id. DRP has upheld the quantum addition and the assesses has voluntarily offered the reimbursement of Rs. 47,90,32,670/- as fee for technical Services (FTS) to be taxable in India this year i.e. AY 2012-13? 2. Whether on the facts and in the circumstance of the case and in law, the Ld. CIT(A) has erred in holding a view that there was no furnishing of inaccurate particulars of income by relying on its own decision for AY 2011-12 wherein the AO and the Ld. DRP established the fact that income as FTS was knowingly and willfully misclassifIed as reimbursement of expenses thereby holding assessee has furnished inaccurate particulars of income? 3. The Appellant prays that the order of the Ld. CIT(A} on the above grounds be set aside and that of the Assessing Officer restored. 4. The Appellant craves leave to amend or alter any ground or add a new ground which may be necessary." 2.1 The Ground of Cross Object....
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.... 13.01.2020 and therefore, due date of filing of the C.O was 11.02.2020, whereas the C.Os have been filed on 19.07.2021. The ld. Counsel submitted that period from 15.03.2020 till 19.07.2021 is covered by the order of the Hon'ble Supreme Court in M.A. No 665/2021. Therefore, he submitted that effective delay is only of 32 days from 11.02.2020 to 15.03.2020. The ld. Counsel of the assessee submitted that initially the assessee was advised to seek remedy against the order of ld. CIT(A) by way of application under Rule 27 of the ITAT Rules. However, later on the assessee was advised to file C.O. and therefore delay in filing the C.O is solely on account of legal advise received by the assessee and there was no deliberate or any malicious intention in delay in filing the C.O. The Counsel submitted that delay was due to bonafide belief and circumstances beyond control of the assessee and accordingly, he submitted to condone the delay in filing the appeal. On the contrary, the ld. D.R opposed condoning of the delay. 4. We have heard the rival submission of the parties and perused the material available on record on the issue of condonation of the delay. The delay of 32 days excluding ....
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....elay. Therefore, in our opinion their exist a sufficient and reasonable cause for condoning the delay in filing the present cross objections. 6. In the light of aforesaid discussion and in exercise of powers u/s 253(5) of the Act, we hereby condone the delay in filing the present cross objections as we are satisfied that their exist a sufficient cause for not presenting the Cross Objections within the prescribed time and accordingly same are admitted for adjudication. 7. Briefly stated, the facts of the case are that the ld. Assessing Officer in draft assessment orders passed for A.Y. 2012-13 held the reimbursement for services received by the assessee from its Associated Enterprises as fee for technical services (FTS) following the finding of the ld. Dispute Resolution Panel (DRP) in assessment year 2011-12. In A.Y. 2011-12, the assessee did not prefer appeal against the finding of ld. DRP in this issue. Based on direction of the ld. DRP for A.Y. 2011-12, the asesee offered the reimbursement amounting to Rs. 47,90,32,670/- to tax in India for A.Y. 2012-13. The assessee did not file any objection before the ld. Dispute Resolution Panel (for short 'DRP') against the draft asse....
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....ted 23/11/2015 in the case of CIT vs. M/s. SSA's Emerald Meadows where an identical issue was decided in favour of the assessee. We consider it appropriate to refer to the operative part of the decision of the Hon'ble High Court of Karnataka in the case of CIT Vs. M/s. SSA's Emerald Meadows (supra) is read as under: "2. This appeal has been filed raising the following substantial questions of law: (1) Whether, omission if assessing officer to explicitly mention that penalty proceedings are being initiated for furnishing of inaccurate particulars or that for concealment of income makes the penalty order liable for cancellation even when it has been proved beyond reasonable doubt that the assessee had concealed income in the facts and circumstances of the case? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the penalty notice under Section 274 r.w.s. 271(1)(c) is bad in law and invalid despite the amendment of Section 27.41 13) with retrospective effect and bra virtue of the amendment, the assessing officer has initiated the penalty by properly recording the satisfaction for the same? ....
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....monstrated the notice, we find that the AO is not sure whether he was to proceed on the basis that the assessee has concealed the particulars of his income or furnished inaccurate particulars of income. The Hon'ble High Court also observed that in such a situation, the levy of penalty suffers from non-application of mind. 10. We, considering the ratio of decision of Hon'ble Supreme Court in the case of CIT VS M/s. SSA's Emerald Meadows (supra), Hon'ble High Court of Karnataka in the case CIT VS Manjunatha Cotton Ginning Factory (supra), and Hon'ble jurisdictional High Court decision ITA No 1154/Mum/2014 in CIT Vs Samson Perinchary observe that the action of the AO in passing the penalty order u/s 271(1)(c) shows that there is non-application of mind thereby the penalty order is not sustainable. We also rely on ratio of the recent decision of the Hon'ble Jurisdictional High Court in Tax Appeal No. 51 & 57 of 2012 of Mohd. Farhan A. Shaikh v. DCIT dated 11.03.2021 has dealt on this disputed issue of validity of notice in question No. 1 Para 180,181 &182 and the observations are read as under: "180. One course of action before us is curing a defect in the notice by r....